TMI Blog2023 (9) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of earlier assessment year (2009-10), is not justified, particularly when the assessing officer was satisfied and nor addition was made. Thus, the reopening u/s 147 is invalid and the assessment order passed by the Assessing Officer is held void ab initio. Decided in favour of assessee. - Shri Pawan Singh, Judicial Member For the Assessee : Ms. Chaitali Shah, C.A. For the Department : Shri Vinod Kumar, Sr. DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of National Faceless Appeal Centre, Delhi (NFAC)/learned Commissioner of Income Tax (Appeals) (in short, the ld. CIT(A)) dated 19/05/2022 for the Assessment Year (AY) 2011-12. The assessee has raised following grounds of appeal: 1. The ld. CIT(A) erred in law and on facts of the case erred in confirming the decision of Assessing Officer in making addition as explained FD of Rs. 12,55,000/-. 2. The ld. CIT(A) erred in law and on facts of the case in confirming the decision of Assessing Officer in making addition u/s 69 of IT Act of Rs. 2,40,000/-. 3. Your Appellant craves the leave to add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may take a view in accordance with its discretion. 5. I have considered the submissions of both the parties and keeping in view the fact explained by the ld. AR of the assessee which is supported by the affidavit of assessee that there is no intentional or deliberate delay, the delay was mainly occurred due to heavy water logging in an around, Shree Swaminarayan Seva Trust, Gurukul Road, Vapi. I also find merit in the submission of ld. AR of the assessee that by causing delay, the assessee is not going to be benefitted, therefore, keeping in view the cause of substantial justice, the delay of 43 days in filing appeal is condoned. Now adverting to the merit of the case. 6. Brief facts of the case are that the assessee has not filed return of income for A.Y. 2010-11. The case of assessee was reopened on the basis of information that the assessee made time deposit of Rs. 12.55 lacs in bank. Notice under Section 148 of the Income Tax Act, 1961 (in short, the Act) was issued on 28/03/2018 after recording reasons of reopening. In response to notice under Section 148, the assessee filed return of income on 07/04/2018 declaring taxable income of Rs. 1,31,500/-. The assessee requested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther aggrieved, the assessee has filed present appeal before the Tribunal. 10. I have heard the submissions of ld. AR of the assessee and the ld. Sr. DR for the revenue. The ld. AR of the assessee submits that she has raised additional ground of appeal vide application dated 08/05/2023. The additional ground of appeal is purely legal in nature for challenging the validity of reassessment under Section 147 and notice under Section 148 of the Act. The assessee has objected right from the beginning against reopening as well as raised similar grounds of appeal before the ld. CIT(A). The ld. AR of the assessee submits that no new facts is to be brought on record for adjudicating additional ground of appeal. The fact required for adjudication of additional ground of appeal is emanating from the orders of the lower authorities. To support her submission, the ld. AR of the assessee relied on the decision of Hon'ble Supreme Court in National Thermal Power Corporation Vs CIT 229 ITR 383 and Jute Corporation of India Vs CIT 187 ITR 688. 11. On the other hand, the ld. Sr. DR for the revenue submits that the assessee has not raised this ground of appeal at the time of filing original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order for A.Y. 2009-10 dated 27/10/2016 passed under Section 143(3) r.w.s. 147 of the Act. The ld. AR of the assessee further submits that there is no new deposit in the current assessment year except the deposit in earlier years which was again invested in time deposit/term deposit. The ld. AR of the assessee submits that the Assessing Officer was provided complete details at the time of filing objection and no new details were required to be furnished as all details were available before the Assessing Officer. The Assessing Officer wrongly concluded that the assessee has not furnished complete details. 14. On merit, the ld. AR of the assessee submits that once the issue was examined in depth in A.Y. 2009-10 and was accepted the same issue, neither can be agitated nor it should be brought to tax when it was accepted in A.Y. 2009-10. There were no new funds deposited with the bank, rather it was the same amount re-deposited in time / term deposits. The ld. AR of the assessee submits that before the ld. CIT(A), they have filed various submissions including the submission dated 05/11/2018, bank statement, computation of income alongwith reasons of reopening. However, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddition on account of cash deposit in bank account was made. Before me, the ld. AR of the assessee explained that there is no new deposit in the bank and that deposits in the bank belongs to Shree Swaminarayan Seva Trust which is source from the proceeds of old FDs. On perusal of record of various bank statements, I find merit in the submission of assessee that the reopening for the assessment year under consideration is the same which was the basis for A.Y. 2009-10 wherein the department has already accepted and no addition was made on the basis of similar reasons of reopening. The only difference in facts are that for this year, the assessing officer made reopening by recording that the assessee made time deposits in bank account. Therefore, I am of the view that reopening under Section 147 of the Act on the basis of similar reasons, which was the basis of earlier assessment year (2009-10), is not justified, particularly when the assessing officer was satisfied and nor addition was made. Thus, the reopening under section 147 is invalid and the assessment order passed by the Assessing Officer is held void ab initio. 18. As discussed above, as no addition was made in A.Y. 2009-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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